Businesses Sue Homeland Security Over E-Verify

In a move that might impact national security recommendations made to the incoming Obama administration, business groups have filed suit against the Department of Homeland Security (DHS).

The suit, filed in the U.S. District Court for the District of Maryland, says it is illegal for the DHS to force federal contractors and subcontractors to use its E-Verify online system, which lets employers check the work status of new hires.

The suit is being led by the U.S. Chamber of Commerce, with the Associated Builders and Contractors, the Society for Human Resources Management, the American Council on International Personnel, and the HR Policy Association as co-plaintiffs.

Participation in E-Verify was voluntary, but President Bush signed an executive order in June that made its use mandatory starting January 15, 2009 for contractors who hired anyone during the term of a contract with the federal government, whether the hires were assigned to work on the federal contract or not.

The order, amending Executive Order 12989, also directed federal departments or agencies entering into contracts to require that their contractors use E-Verify.

Violation of federal law

In a statement, the U.S. Chamber of Commerce said its lawsuit challenges the use of the executive order coupled with federal procurement law to make E-Verify mandatory for federal contractors on projects worth more than $100,000 and subcontractors on projects worth more than $3,000.

The lawsuit, Chamber of Commerce of the United States of America, et al. v. Chertoff, et al., also challenges DHS's expansion of E-Verify to require the re-authorization of existing workers, the Chamber of Commerce said.

Federal law explicitly prohibits the secretary of homeland security from making E-Verify mandatory or using it to re-authorize the existing workforce, Robin Conrad, executive vice president of the Chamber of Commerce's public policy law firm, the National Chamber Litigation Center, said in a statement.

That stance goes against the recommendations made by the Washington-based Center for Strategic and International Studies (CSIS) to the incoming Obama administration recently.

CSIS's recommendations include making strong authentication of identity mandatory for critical cyber infrastructures, including the government services sector.

However, the Chamber of Commerce is not alone. Some states have embraced E-Verify, which is operated by the DHS together with the Social Security Administration. Others, however, are wary, and at least one state, Illinois, was embroiled in a
lawsuit with the DHS over E-Verify.

The Chamber of Commerce's lawsuit is the culmination of months of opposition to the president's executive order. In August, it issued a report calling the order misguided, premature and unwarranted and saying the president and Congress did not have the authority to make use of the program mandatory, according to the National Law Journal.

"The DHS intends to expand E-Verify on an unprecedented scale in a very short timeframe, and to impose liability on government contractors who are unable to comply," Randy Johnson, the Chamber's vice president of Labor, Immigration and Employee Benefits, said in a statement.

"Given the current economy, now is not the time to add more bureaucracy and billions of dollars in compliance costs to America's businesses," Johnson added.